Zero tolerance in a professional context almost invariably means dismissal, but Pope Francis’s claim that the Church has a “zero tolerance” policy is not borne out by the figures he presented to the United Nations: only one quarter of all priests found to have sexually abused children have been dismissed. That’s a 75% tolerance not zero.

On 1 March 2017, Marie Collins, the only abuse survivor on Pope Francis’ Pontifical Commission for the Protection of Minors, resigned because “what was happening behind closed doors was in conflict with what was said in public.” See article in National Catholic reporter ‘Survivor explains decision to leave Vatican’s abuse commission‘.

The week before three other members of the Pontifical Commission, Sheila Hollins, Bill Kilgallon and Kathleen McCormack gave evidence in a panel to the Royal Commission, and expressed their frustration with the Vatican.

The Chair of the Royal Commission, Justice McClellan told the panel that the work they were doing was of “fundamental importance to individual countries” because the work of the Royal Commission indicates that real change in the culture and practices of the Church in Australia will only occur if “it’s coming from Rome.”

After several hours of questioning in which the panel spoke about resistance in Rome to their recommendations and its lack of resources, Justice McClellan observed: “The picture you all paint, from an outsider’s point of view, is of a world organisation which is struggling to come to terms with the safety of children and its responsibilities in that area.”

A surprising feature of the evidence from the panel was the lack of attention to the reform of canon law. An Italian professor of canon law who couldn’t speak English was appointed to the Commission but he resigned because he “couldn’t make the contribution he needed”. An American canon lawyer in Rome gave some assistance, but then had to return to the United States. There is no canon lawyer on the now 15 member Commission.

Since 1996, the Catholic Bishops Conferences of Ireland, Great Britain, the United States, and Australia have wanted mandatory reporting under canon law, but have been continually rebuffed by the Vatican. In 2002, the United States bishops put a proposal to the Vatican that included mandatory reporting, but, like the Irish in 1997, were told it did not comply with canon law. Eventually a compromise was reached whereby bishops were instructed to obey civil reporting laws, and that instruction was extended to the rest of the world in 2010. The Vatican seemed more concerned about bishops going to jail for breaching reporting laws than the protection of children who were unfortunate enough to be living in States with inadequate reporting laws.

In 2014, the United Nations Committees on the Rights of the Child and against Torture queried the Vatican’s representatives as to why the Vatican did not impose mandatory reporting under canon law. Pope Francis’ casuistic response in September 2014 was that mandatory reporting would interfere with the independence of sovereign states. Unless a country prohibits reporting child sexual abuse to the police, canon law interferes with such sovereignty as much as the rules of golf.

In February 2016, Cardinal O’Malley, the President of the Pontifical Commission stated that “even beyond these civil requirements, we all have a moral and ethical responsibility to report suspected abuse to the civil authorities.” This was a welcome announcement suggesting that the Commission might convince Pope Francis to change his mind about mandatory reporting. However, on 6 December 2016 the Pontifical Commission published its guidelines for national protocols on child sexual abuse. In another disconnect between public statements and what really happens, Cardinal O’Malley’s statement was not included.

When asked about mandatory reporting, Bill Kilgallon repeated the official line given by the Vatican spokesman, Fr Lombardi on 16 May 2011: the Church cannot impose mandatory reporting because some countries have repressive regimes. The irony of Lombardi’s response is that in 2010 when he announced the direction for bishops to obey civil laws on reporting there was no suggestion of an exception for repressive regimes.

Opponents of mandatory reporting in the Vatican seem to be unaware of the Church’s history. In 1842, the Holy Office under Pope Gregory XVI issued a direction that the canons that required penitents to denounce priests who solicited sex in the confessional no longer applied in the lands of “schismatics, heretics and Mohammedans”, the repressive regimes of the day. It’s really very simple. Kilgallon agreed that an exception to mandatory reporting could be made for such countries, but that was only his personal opinion.

On 22 February 2017, Br Payne from the De La Salle Brothers told the Royal Commission that Pope Francis’ rhetoric about “zero tolerance” of child sexual abuse did not match the reality imposed by canon law. Canon law requires a religious brother to receive a “canonical warning” before he can be dismissed. Br Payne said it was “a bit late” to require warnings after the abuse had occurred. The abuser has to offend again after a canonical warning has been given before he can be dismissed.

Similar problems arise with the disciplinary canons dealing with priests. Not a word has changed in Canon 1341 that requires a bishop to try and cure the priest before he is put on a canonical trial. Not a word has changed in Canon 1321, which two Vatican appeal courts interpreted as meaning that a priest cannot be dismissed for paedophilia because he is a paedophile. Not a word has come from the Vatican indicating that these canons are being interpreted differently from the past.

Zero tolerance in a professional context almost invariably means dismissal, but Pope Francis’s claim that the Church has a “zero tolerance” policy is not borne out by the figures he presented to the United Nations: only one quarter of all priests found to have sexually abused children have been dismissed. That’s a 75% tolerance not zero.

The buck for canon law stops at the popes, and Pope Francis can change it with the stroke of a pen. The lack of consistency between his rhetoric and his actions on child sexual abuse could turn out to be the major blot on his papacy. When Marie Collins resigns, and Kathleen McCormack describes her work at the Pontifical Commission as “like water on a rock, we’ve just got to keep at it,” there is not much room for optimism.

Kieran Tapsell is the author of Potiphar’s Wife: The Vatican’s Secret and Child Sexual Abuse (ATF Press 2014), and a submission to the Royal Commission, Canon Law: A Systemic Factor in Child Sexual Abuse in the Catholic Church. He gave evidence about canon law as part of a panel on 9 February 2016.

Thanks again, Kieran. We need people like you to keep up the pressure from the Church even as the pressure from the Royal Commission necessarily dies down. You’ve explained among other things why Robert Best is still a Christian Brother despite his proven record of child abuse. Perhaps he didn’t receive a formal warning so the Christian Brothers can’t dismiss him. If that’s the case, it points back to the complicity of the organization – they failed to warn him or take other pastoral care of him, and children suffered terribly as a result. They deserve to have to support him – in failing him they failed his victims. The 75% statistic is truly shocking – I take it that’s 75% of abusive priests who are still living?

I don’t know if they are all still living or not. Maybe some of them are not. On 6 May 2014, the Holy See’s envoy to the United Nations, Archbishop Tomasi said that of 3,400 credible allegations referred to the CDF since 2004, only 848 had been dismissed and the others dealt with by some unstated disciplinary measures. The Vatican refused to allow the UN access to the details of these cases, so we really don’t know how many are alive or not. Nor do we know what kind of disciplinary measures were applied. We do know that in some cases a “life of prayer and penance” was imposed, but we do not know what that entailed in particular cases. O’Reilly and Chalmers in their book, The Sexual Abuse Crisis and the Legal Responses say: “What some dioceses have done is to give the cleric specific instructions regarding what prayer and penance… For example, the bishop could mandate such things as attending a support group or counselling, spiritual direction, specific time for prayer for victims of sexual abuse, a specific time for types of prayer etc.” The notorious Fr Marcial Maciel was not dismissed by Pope Benedict XVI in 2006. He was suspended, and asked to go to a monastery to lead “a reserved life of prayer and penance”. His “monastery” was a house with a pool in a gated community in Jacksonville, Florida, bought for him by the Legion of Christ which he founded. He died there in 2008. According to one case study examined by the Royal Commission, a Lismore priest who was not dismissed but sentenced to a “life of prayer and penance” was required to say a Mass every Friday for his victims.

Kieran Tapsell — you are one of the few persons who are superbly knowledgeable in both civil and canon law and associated legal history.
Keep going Kieran – you are one of the few who are a match for them – for the entrenched attitudes and limited awareness of the catholic hierarchy and its lack of understanding of the Christian imperative.

Thank you, Kieran. Your research has benefited not only Australians, but many others world wide.
It is a reminder that the Pope still requires Bishops to conceal clergy abuse as a requirement under canon law.
This is in serious conflict with their responsibilities as sole managers of Catholic Education Institutions and social services in Australia.
In Queensland and in many Australian Catholic Education Institutions, federal and state governments education funding is provided to the Bishop as the sole authority of the education institution.
Highly concerning is that Bishop’s autocratic management requires limited accountability or transparency to families and community.
In the Cairns Diocese, the ‘Board of Governance for Education’ is an ‘advisory board’ and has no democratic elections. The chairman of the board is the church retained lawyer.
Many parishioners would suggest a ‘conflict of interests’.
Another of the church retained lawyers held positions on the Queensland Catholic Education Commission (QCEC).
Some of the Education Board members are employees.
In 2017, the clever crafting of governance roles allows the church’s continued avoidance of responsibility.
Four years into the Royal Commission, the Vatican still requires Bishops to defer to canon law when it conflicts with civil law. The Vatican instructs Bishops to report abuse to the authorities (except Qld, WA and Tas where there is no civil law requiring clergy to report).
The Vatican still requires Bishops to minimise damage to the church to protect it from scandal.
Bishops continue to engage international priests and religious to work into their diocese on behalf of trusting parishioners.
(Parishioners have no access or knowledge of the clergy’s background).
Yet it seems when abuse allegations are made, the Bishop’s regal power allows him to suddenly claim no responsibility for the clergy or use the common ‘tactic’ of ignoring and not responding to complaints.
The priest is swiftly returned overseas (often to places where there are no extradition treaties with Australia).
In one recent incident, a Catholic Education Services executive claimed it was not his responsibility to investigate clergy abuse as the religious was ‘on loan’ from an order, yet he was an employee.

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